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May 20, 2005

A taste of Tennessee Sour Mash

I detailed in this post that the Tennessee Supreme Court has now refused to rehear its Gomez decision (basics here, problems here), and in this follow-up post I pondered what happens next with the Gomez case and other cases in Tennessee. Helpfully, insightful Tennessee correspondent David Raybin has provided this report from the front lines:

I have learned that the attorneys for the litigants in Gomez will be taking a prompt appeal to the US Supreme Court. I am confident that Tennessee Association of Criminal Defense Lawyers will file an Amicus to the petition. Gomez also presents a plain error issue which the Supreme Court may wish to resolve as well or it may make the case unattractive.

The Gomez issue may not yet be ripe for federal habeas corpus review for [other] pipeline cases because the Court of Criminal Appeals was routinely granting Blakely relief to cases coming before it. Given that the Attorney General believed the statute was flawed, the AG never appealed those cases to the Tennessee Supreme Court. Thus, the universe of potential defendants who could go directly to federal court at this time is rather small. The flood will start with those cases in the Court of Criminal Appeals where the issue has been raised and they must now deny relief.

The other (and in my view) much greater problem is what is to be done at the trial level. It is malpractice to accept any sentence higher than the presumptive minimum because of the near universal belief that Gomez will die in federal court. Judges in some places are now imposing two sentences and some judges are having the jury find the enhancement factors. Chaos. It is unnecessary to speculate about the problems Gomez wrought in Tennessee. It is all too real.

In addition to this interesting report, David also made sure to provide a bit of background on a well known potent potable: "Sour mash, which also is sippin’ whiskey and Tennessee whiskey, is a frequently misunderstood term. Sour mash simply refers to the technique used in the preparation of most, if not all, straight whiskey. The sour mash method makes the yield more efficient. Sour mash got its name because the thin spirit 'beer' remaining had a slightly acidic taste, although the resultant whiskey was anything but sour."